[Copyrighted Material Omitted]
Superior Court of San Diego County, No. SCD228173, Roger W. Krauel, Judge. Court of Appeal, Fourth Appellate District, Division One, No. D059713.
Raymond M. DiGuiseppe, under appointment by the Supreme Court, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor, James D. Dutton, Steven T. Oetting and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
Opinion by Werdegar, J., with Cantil-Sakauye, C. J., Baxter, Chin, Corrigan, Liu, JJ., and Needham, J.,[*] concurring.
[179 Cal.Rptr.3d 2] [335 P.3d 1084]
WERDEGAR, J. --
In this case we are asked to decide whether a defendant may, consistently with Penal Code section 954,  be convicted of both oral copulation of an unconscious person (§ 288a, subd. (f)) and oral copulation of an intoxicated person ( id. , subd. (i)) based on the same act. The Court of Appeal understood our decision in People v. Craig (1941) 17 Cal.2d 453 [110 P.2d 403] ( Craig ) as precluding multiple convictions in these circumstances and vacated defendant's conviction for oral copulation of an intoxicated person. We conclude tat Craig is distinguishable, the two statutory subdivisions at issue here describe different offenses, and defendant may properly be convicted of, although not punished for, both. (§ 654; see People v. Vargas (2014) 59 Cal.4th 635, 637 [174 Cal.Rptr.3d 277, 328 P.3d 1020] [multiple prior convictions arising out of a single act against a single victim cannot constitute multiple strikes under " Three Strikes" law].) We therefore reverse the judgment.
Factual and Procedural Background
In the early evening of June 25, 2010, defendant Ramon Fulgencio Gonzalez and the victim, Carolyn H., were on the sidewalk near the intersection of 16th Street and Island Avenue in San Diego. Carolyn, who had passed out after having drunk a pint of vodka, lay with her head near defendant's lap. Witnesses saw defendant moving Carolyn's head up and down with one hand while his penis was in her mouth. A police officer arrived on the scene and confronted defendant, who put his penis back in his pants and tried to zip them. When the officer pulled defendant away from Carolyn, who was unconscious, her head hit the concrete. The officer handcuffed defendant, and paramedics transported Carolyn to a hospital.
An information charged defendant with, among other things and as relevant here, oral copulation of an unconscious person in violation of section 288a, subdivision (f) (count 1), and oral copulation of an intoxicated person in violation of section 288a, subdivision (i) (count 2), based on the same act. A jury convicted him of both charges. On count 1 the trial court sentenced defendant to the low term of three years, and on count 2 the court imposed but stayed execution of sentence pursuant to section 654. On appeal, citing this court's decision in Craig, supra, 17 Cal.2d 453, defendant argued his convictions on counts 1 and 2 could not both stand because he had committed a single act of oral copulation. A majority of the Court of Appeal agreed and vacated the conviction on count 2, reasoning subdivisions (f) and (i) of section 288a delineate different circumstances under which the statute may be violated but do not set forth distinct offenses of which defendant could be convicted. A dissenting justice contended (1) that Craig does not apply when, as in this case, a defendant is charged and convicted under two provisions of section 288a that require proof of different elements and ...